[UPDATED with details and analysis] BREAKING: Second Circuit rules that Section 215 does not authorize telephony bulk collection program

[UPDATED] The opinion is here. Judge Sack’s concurring opinion is here. Because the court rules on statutory grounds, it does not reach the Fourth Amendment questions. The court reverses the district court’s denial of plaintiffs’ motion for a preliminary injunction, but does not itself impose such an injunction, or (contraBen Wittes) “strike down” the program; instead it simply reverses the district court and remands for further consideration, reasoning that the basic landscape will be altered in a few weeks’ time when either the statute sunsets or Congress amends it to authorize and/or restrict some form of telephony metadata bulk collection program.

This is, in my humble opinion, exactly the correct resolution. My earlier posts, raising serious doubts about the statutory authority for the program, are here and here. To similar effect, see Part 5 of the PCLOB Report. As the court notes (pp. 91-93), it is especially inapt to try to resolve the constitutional questions, and identify the contours of what is constitutionally permitted, in advance of a legislative debate and decision about how, if at all, such a program should be structured and limited–something that Congress is currently contemplating. “The constitutional issues . . . are sufficiently daunting to remind us of the primary role that should be played by our elected representatives in deciding, explicitly and after full debate, whether such programs are appropriate and necessary. Ideally, such issues should be resolved by the courts only after such debate, with due respect for any conclusions reached by the coordinate branches of government.”

I’ll add reactions below as I go through the opinions.

UPDATE: 1. Standing. The court holds that the plaintiffs have standing to sue. The gist of the court’s reasoning is that because the plaintiffs are challenging the government’s collection of their telephony metadata as an unconstitutional seizure [and, I would add, a violation of the Administrative Procedure Act], it does not matter that the government’s analysis of those metadata might be speculative. The court also suggests (p.31) that the plaintiffs have standing to contest the NSA computers’ scanning of their metadata, even if no humans ever see those metadata or attribute the metadata to the plaintiffs.

2. Preclusion. The court holds that Congress has not implicitly precluded plaintiffs’ Administrative Procedure Act challenge. In particular, the court (correctly, in my view) notes (p.48) how counterintuitive it would be for Congress to permit plaintiffs to bring only constitutional, but not statutory, challenges to section 215 orders–something that would be in sharp tension with the presumptions underlying the constitutional avoidance canon: “[I]t would seem odd that Congress would preclude challenges to executive actions that allegedly violate Congress’s own commands, and thereby channel the complaints of those aggrieved by such actions into constitutional challenges that threaten Congress’s own authority. There may be arguments in favor of such an unlikely scheme, but it cannot be said that any such reasons are so patent and indisputable that Congress can be assumed, in the face of the strong presumption in favor of APA review, to have adopted them without having said a word about them.” Steve’s earlier post on this issue is here.

3. The Statutory Merits. The court does not address the argument I made about whether the program violates the Electronic Communications Privacy Act. Nor does it expressly address whether, as I argued, the “relevance” standard of Section 215 requires a showing over and above what is necessary to obtain a grand jury subpoena. Instead, the court simply notes that the statute requires at least what would be required in order to obtain such a subpoena . . . and reasons that such a subpoena would never be based on a notion of “relevance” as broad as the government’s (and the FISC’s) theory underlying the telephony metadata program. “In adopting § 215,” the court explains,

Congress intended to give the government, on the approval of the FISC, broad‐ranging investigative powers analogous to those traditionally used in connection with grand jury investigations into possible criminal behavior. . . . [T]he government takes the position that the metadata collected – a vast amount of which does not contain directly “relevant” information, as the government concedes – are nevertheless “relevant” because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of “relevance” is unprecedented and unwarranted. The statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here. . . .

The government . . . argues that . . . the telephone metadata records are relevant to authorized investigations in that they are necessary for the government to apply certain investigative techniques – here, searching based on “selectors” through the government’s metadata repository. That argument proves too much. If information can be deemed relevant solely because of its necessity to a particular process that the government has chosen to employ, regardless of its subject matter, then so long as “the government develops an effective means of searching through everything in order to find something, . . . everything becomes relevant to its investigations” – and the government’s “technological capacity to ingest information and sift through it efficiently” would be the only limit to what is relevant. PCLOB Report 62 (emphases in original). . . .

The interpretation urged by the government would require a drastic expansion of the term “relevance,” not only with respect to § 215, but also as that term is construed for purposes of subpoenas, and of a number of national security‐related statutes, to sweep further than those statutes have ever been thought to reach. . . .

The interpretation that the government asks us to adopt defiesany limiting principle. The same rationale that it proffers for the “relevance” of telephone metadata cannot be cabined to such data, and applies equally well to other sets of records. If the government is correct, it could use § 215 to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including e‐mail and social media information) relating to all Americans.

Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans. Perhaps such a contraction is required by national security needs in the face of the dangers of contemporary domestic and international terrorism. But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language.

4. Implications for other statutes. As the court notes, the government’s theory of “relevance,” if accepted, could have profound implications for other statutory authorities that use similar standards, including some that do not even require the involvement of a court such as the FISC. “For example, the same language is used in 18 U.S.C. § 2709(b)(1) and 20 U.S.C. § 1232g(j)(1)(A), which authorize, respectively, the compelled production of telephone toll‐billing and educational records relevant to authorized investigations related to terrorism.” The court’s rejection of the government’s interpretation of “relevance” in Section 215 should, therefore, also have an important impact on the understanding and application of these other statutes, including those authorizing the use of “national security letters.”

5. Congressional ratification of the FISC interpretations?

The government’s strongest argument was probably that Congress had implicitly ratified the FISC’s interpretation of Section 215 in 2000-2001 when it reauthorized the statute, even if that interpretation was wrong to begin with. The court rejects the ratification argument, in large part because, in its view, “the public nature of an interpretation plays an important role in applying the doctrine of legislative ratification.”

[T]he telephone metadata program was (for understandable reasons) shrouded in the secrecy applicable to classified information, and only a limited subset of members of Congress had a comprehensive understanding of the program or of its purported legal bases.

There was certainly no opportunity for broad discussion in the Congress or among the public of whether the FISC’s interpretation of § 215 was correct. Finding the government’s interpretation of the statute to have been “legislatively ratified” under these circumstances would ignore reality. Practically speaking, it is a far stretch to say that Congress was aware of the FISC’s legal interpretation of § 215 when it reauthorized the statute in 2010 and 2011. We therefore cannot accept the argument that Congress, by reauthorizing § 215 without change in 2010 and 2011, thereby legislatively ratified the interpretation of § 215 urged by the government. The widespread controversy that developed, in and out of Congress, upon the public disclosure of the program makes clear that this is not a situation in which Congress quietly but knowingly adopted the FISC’s
interpretation of § 215 because there was no real opposition to that interpretation.

6. The Fourth Amendment. As noted above, the court does not resolve the constitutional question, noting only that the dispute “touches an issue on which the Supreme Court’s jurisprudence is in some turmoil,” and that the constitutional analysis might be dramatically affected by what the legislature now decides to do after public debate. The court strongly suggests that the government could be on much stronger constitutional footing if and when Congress carefully strikes what it considers to be the proper balance:

[W]hether Congress has considered and authorized a program such as this one is not irrelevant to its constitutionality. The endorsement of the Legislative Branch of government provides some degree of comfort in the face of concerns about the reasonableness of the government’s assertions of the necessity of the data collection. Congress is better positioned than the courts to understand and balance the intricacies and competing concerns involved in protecting our national security, and to pass judgment on the value of the telephone metadata program as a counterterrorism tool. Moreover, the legislative process has considerable advantages in developing knowledge about the far‐reaching technological advances that render today’s surveillance methods drastically different from what has existed in the past, and in understanding the consequences of a world in which individuals can barely function without involuntarily creating metadata that can reveal a great deal of information about them. A congressional judgment as to what is “reasonable” under current circumstances would carry weight – at least with us, and, we assume, with the Supreme Court as well – in assessing whether the availability of information to telephone companies, banks, internet service providers, and the like, and the ability of the government to collect and process volumes of such data that would whether Congress has considered and authorized a program such as this one is not irrelevant to its constitutionality.

7. Judge Sack’s Concurrence. As I read his opinion, Judge Sack is suggesting that perhaps the FISC would have offered better statutory analysis if it had heard from an advocate responsible for challenging the government’s interpretation of the law, rather than acting within what amounted to an echo chamber. He cites the Pentagon Papers litigation as an historical analogy in which the adversarial perspective made all the difference.

______________

* CORRECTION: I had posted earlier that the government did not contest plaintiffs’ standing to bring their statutory claim. But I cannot locate where the government made that (selective) Article III argument, and the standing discussion in its appellate brief does not appear to distinguish between the statutory and constitutional claims.

Filed under:

About the Author(s)

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).